Summary: Miss Y complained about the way the Council dealt her child, Z’s special educational needs support and alternative provision. We have found finding fault by the Council, causing injustice, in failing to: provide Z with a suitable education; and complete the EHC Plan review process within statutory timescales. The Council has agreed to remedy the injustice by apologising, making a payment to reflect the distress caused and the impact on Z of the missed education.

The complaint

1. The complainant, Miss Y, complains the Council failed to provide her child, Z, with a suitable education and the special educational needs (SEN) support in their Education Health and Care (EHC) Plan from March 2022.
2. Miss Y says:

• Z missed out on two years of education, because of the Council’s failures. This affected Z’s wellbeing and caused her upset and worry. She had to incur the cost of instructing solicitors to ensure the Council took action to arrange alternative provision for Z; and
• The Council’s offer of financial redress of £4,500 for Z’s missed provision was not adequate. It did not reflect the full impact of the missed education on Z and her, and the solicitors costs she incurred.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these.
4. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

7. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

Failure to provide a suitable education from March 2022 to April 2024

8. The Council accepted it failed to provide Z with a suitable education from March 2022. It offered a remedy for this in January 2024. Miss Y was not satisfied with the proposed remedy and complained to us about this in February 2024. On this basis I consider the complaint about the Council’s proposed remedy for its failure to provide Z with a suitable education from March 2022 is not late.
9. Z’s final amended EHC Plan issued in November 2023 confirmed their educational provision as "Education Otherwise than at School”. At the same time, it told Miss Y it would deliver this educational provision as a full package of home tuition. Miss Y was happy with the provision set out in the EHC Plan and the Council’s agreement to provide this though the tuition package.
10. Miss Y had the right to appeal to the SEND Tribunal about the special educational provision or educational placement set out in Z’s EHC Plan.
11. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
12. Here, as there was no disagreement between the Council and Miss Y about Z’s educational provision, I consider it would have been unreasonable to expect Miss Y to use her appeal rights. So I have investigated the Council’s continuing failure to provide Z with a suitable education from November 2023 to April 2024.

Other events before February 2023

13. I have not considered any part of Miss Y’s complaint about other events which took place before February 2023.
14. This is because Miss Y did not complain to us until February 2024. I do not consider there are good reasons why Miss Y could not have complained to us about other events before this.

Events from February 2024

15. I haven’t investigated complaints about events from February 2024 because these are not part of the complaint Miss Y brought to us.

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How I considered this complaint

16. I spoke to Miss Y, made enquiries of the Council, and read the information Miss Y and the Council provided about the complaint.
17. I invited Miss Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

What should have happened

Special educational needs and provision

18. A child with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and arrangements for meeting them.
19. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
20. Councils have a duty to arrange the special educational provision set out in an EHC Plan. (Children and Families Act 2014 section 42)

Reviewing EHC Plans

21. The procedure for reviewing and amending EHC Plans is set out in legislation and government guidance. This says a council must review an EHC Plan at least every 12 months.
22. Within four weeks of a review meeting, a council must:

• notify the child’s parent or the young person of its decision to maintain, amend or discontinue the EHC Plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176); and
• where it proposes to amend an EHC Plan, it must send the child’s parent or young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)

23. If the council decides to continue to make amendments, following comments from the child’s parent or young person, it must:

• issue the amended EHC Plan as soon as practicable; and
• within eight weeks of the date it sent the EHC Plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)

24. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC Plan. The right of appeal is only engaged when the final plan is issued.

Alternative provision

25. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
26. Suitable education means efficient education suitable to a child’s age, ability and aptitude and any special educational needs they may have. (Education Act 1996, section 19(6))
27. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)

What happened

28. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

March 2022 to September 2022

29. Z has an EHC Plan. As at March 2022, they attended the school placement named in their plan.
30. Following an emergency annual review of Z’s plan on 11 March, their school ended the placement.
31. The Council did not take any steps to complete the annual review process. It did not arrange another placement or make any alternative provision for Z.

October 2022 to February 2023: Council agrees to provide home tuition

32. The Council agreed, in October, to provide home tuition for Z. But, apart from seven hours in February 2023, it did not arrange any tuition for Z.

May 2023: Emergency annual review

33. Miss Y asked the Council to hold an emergency review of Z’s EHC Plan. At the review on 26 May, the Council confirmed:

• Z’s current EHC Plan was the one in place before their placement was ended in March 2022;
• it had not amended the plan following the emergency review in March 2022; and
• Z had been out of education since March 2022.

34. The Council and Miss Y discussed arranging vocational skills training for Z as alternative provision.

July 2023: Vocational skills training

35. The Council arranged skills training provision of 15 hours a week. But Z only attended one session before the end of the school year.
36. I understand Z was unable to engage with the skills training when it resumed at the start of the school year 2023/2024 and only attended 10 hours before this placement ended in October 2023.

August 2023: Miss Y’s complaint

37. Miss Y complained about the Council’s failure to provide Z with a suitable education. She said Z had only received seven hours of tuition since March 2022, the Council had not made any arrangement for their full-time education or taken action to issue an amended EHC Plan.

November 2023: Final amended EHC Plan

38. The Council had sent Miss Y a draft amended plan on 29 September 2023 and issued Z’s final amended EHC Plan on 13 November 2023.
39. The plan named Z’s setting as “Education Otherwise than at School” (EOTAS).

November 2023 to January 2024

40. Miss Y’s solicitors wrote to the Council in November setting out the Council’s failure to provide Z with an education, and proposals for alternative provision going forward. The Council agreed to put a tuition package in place.
41. In January 2024 the Council offered Miss Y a payment of £4,500 as redress for Z’s missed education (based on three terms). It had still not arranged Z’s tuition package.
42. Miss Y was unhappy with the Council’s response and brought her complaint to us.

Current position

43. The Council put Z’s tuition package in place in April 2024. Z was provided with home tuition of seven hours a week from 15 April until the end of the school year.
44. An emergency annual review was held in April 2024.
45. The Council told us, in response to our enquiries about the complaint, it would:

• continue to search for and commission suitable alternative provision for Z and build up their tuition to 15 hours a week;
• provide Z with the education needed to pursue their chosen pathway to post-16 education and start consultations about this early in the school year 2024/2025; and
• issue Z’s draft amended plan by June 2024.

My view – was there fault by the Council causing injustice?

Failure to provide Z with a suitable education

46. The Council has accepted it failed to provide Z with a suitable education from March 2022, when their school placement ended. Apart from some seven hours of tuition in February 2023 and some hours of skills training it made no alternative provision for Z in the period from March 2022 to April 2024, when a tuition package was commissioned for Z.
47. This failure is fault.

Impact of this fault

48. I now have to decide whether the redress the Council offered was a suitable way to remedy the injustice this fault caused, in line with the expectations in our published guidance on remedies
49. We usually consider a remedy payment of between £900 and £2,400 a term is appropriate to reflect the impact of missed provision on the child or young person. The figure is based on the circumstances of each case, to reflect the particular impact on that child or young person.
50. I don’t consider the Council’s proposed remedy of £4,500 (based on three terms @£1,500) meets our expectations.
51. This is because it failed to provide Z with a suitable education for two school years (6 terms) from March 2022, until 15 April 2024. And during this period Z received only a small amount of provision for a very limited period. On this basis my view is the payment should be towards the top of the scale.
52. The failure to provide Z with a suitable education also caused Miss Y upset and worry.
53. I don’t consider it is appropriate to ask the Council to make any payment towards Miss Y’s solicitors’ costs. There are organisations who provide free advice and support to families of children with SEN and EHCPs. And there is no requirement to use solicitors to complete the Council’s complaints process. It was Miss Y’s decision to use solicitors.

Failure to complete the review process within the statutory timescales

54. The Council failed to complete the review process within the statutory timescales following the review meeting on 26 May 2023. It should have told Miss Y within four weeks - by 23 June 2023 - it intended to amend Z’s EHC Plan, and then issued the final amended plan by 18 August 2023.
55. The Council did not issue the final amended plan until 13 November 2023, a delay of 12 weeks.
56. This failure to complete the review process was fault.
57. The failure caused Miss Y worry and uncertainty about the outcome of the review process and delayed her right to appeal to the SEND tribunal.

Service improvements

58. In a recent decision (case reference 23015263) we asked the Council to:

• review whether it has sufficient supply of alternative provision and tutors;
• ensure it has robust processes in place to review provision delivered for children unable to attend school on a regular basis, and to ensure this includes academic teaching and special educational provision: and
• provide us with evidence it has completed these actions.

59. In view of this ongoing action, I do not consider it appropriate to ask the Council to make any further improvements to its service at this stage.

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Agreed action

60. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Miss Y for its failure to: provide Z with a suitable education; and complete the EHC Plan review process within statutory timescales. This apology should be in line with our guidance on Making an effective apology;
2. pay Miss Y £300 to reflect the upset, uncertainty and frustration caused by the Council’s failures. This is a symbolic amount based on our guidance on remedies; and
3. pay Miss Y, on Z’s behalf, £14,000 (based on a payment of £2,400 a term for 5 terms and £2,000 for 1 term). This is a remedy for Z’s benefit to recognise the injustice the missed education has caused them.
61. The Council should provide us with evidence it has complied with the above actions.

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Final decision

62. I have completed my investigation and found fault by the Council causing injustice. The Council has agreed to take the above action to remedy this injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman